Bhaiya Lal & Ors. vs Alam & Ors.
2011 Latest Caselaw 2438 Del

                                      UNREPORTED
*    IN THE HIGH COURT OF DELHI AT NEW DELHI


+           MAC.APP.NO. 61/2011


BHAIYA LAL & ORS.                     ..... Appellants
             Through:            Mr. Yogesh Swaroop, Advocate.

            versus


ALAM & ORS.                               ..... Respondents
                      Through:   Mr. Sameer Nandwani, Advocate
                                 for the respondent No.3.



%                          Date of Decision : MAY 06, 2011

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL

1. Whether reporters of local papers may be allowed
   to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?

                           O R D E R (ORAL)

: REVA KHETRAPAL, J.

1. This appeal is directed against the judgment and award dated

29.09.2010 passed by the Motor Accident Claims Tribunal awarding a

sum of Rs.12,93,784/- against the claimed amount of Rs.50,00,000/-

towards compensation to the appellants for the death of Pyare Lal, son

of the appellants No.1 and 2 in a road accident.

2. With the consent of the parties, the matter is taken up for final

hearing at this stage.

3. Although a number of grounds of appeal are set forth in the

Memorandum of Appeal, the same were not pressed at the time of

hearing of the appeal and the short submission of Mr. Yogesh

Swaroop, the learned counsel for the appellants is that the Claims

Tribunal, while calculating the compensation payable to the

appellants, grossly erred in deducting 50% of the total income towards

the personal expenses of the deceased. He submits that the award in

the present case was made by the Claims Tribunal in a very

mechanical manner. He further submits that having regard to the fact

that the appellants Nos. 3 to 5 are the minor sisters and brother of the

deceased and the appellant No.1 and 2 are parents of the deceased,

who were totally dependent upon the deceased, the deduction of 50%

of the total income of the deceased towards his personal expenses was

unwarranted and unjustified.

4. Learned counsel for the appellant further contends that the

Tribunal after referring to the testimony of PW-1, Sh. Bhaiya Lal, the

father of the deceased, wrongly arrived at the conclusion that there

was no evidence to show that the father of the deceased was not

earning and was completely dependent upon the deceased for his

livelihood and that there was also no evidence that the sisters and

brother of the deceased were completely dependent upon the

deceased. He pointed out that a perusal of the record shows that the

Claims Tribunal, after adjudging the average monthly income of the

deceased to be in the sum of Rs.19,224/- inclusive of 50% towards

future earning, deducted one-half of the earnings of the deceased

towards the personal expenses of the deceased. This, he contended,

was not justified for the reason that the deceased was survived not

only by his parents, but by his two minor sisters and his brother, who

was also a minor. The father of the deceased, PW-1, Bhaiya Lal

testified that he was dependent upon the deceased and categorically

stated that he was illiterate and not gainfully employed, and that he

did not own any agricultural land or any immovable property except

the house that they were living in. No evidence to the contrary was

brought on record by the Insurance Company. In the circumstances,

not more than one-third of the earnings of the deceased should have

been deducted by the Tribunal towards the personal expenses of the

deceased.

5. Indisputably, the deceased was a bachelor and as a general rule,

deduction of one-half towards his personal expenses would be in

consonance with the law laid down by the Supreme Court in the case

of Sarla Verma (Smt.) and Others Vs. Delhi Transport Corporation

and Another (2009) 6 SCC 121. But even in the said case, the

Supreme Court has held that in special circumstances, it would be

appropriate to restrict the deduction for personal expenses to one-third

of the monthly income. It has been so stated in paragraph 32 of the

judgment, which reads as under:-

"Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor

and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non- earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third."

6. In the case of Fakeerappa and Anr. vs. Karnataka Cement

Pipe Factory and Ors. 2004 (2) SCC 473, where the deceased was

survived by his parents aged 38 years and 35 years respectively as

claimed by them in the claim petition (though it could not have been

so as the deceased himself was aged about 27 years), taking into

account the special features of the case, the Supreme Court held that it

would be appropriate to restrict the deduction for personal expenses to

one-third of the monthly income. It held so after observing:-

"7. What would be the percentage of deduction for personal expenditure cannot be governed by any rigid rule or formula of universal application. It would depend upon circumstances of each case. The deceased undisputedly was a bachelor. Stand of the insurer is that after marriage, the contribution to the parents would have been lesser and, therefore, taking an overall view the Tribunal and the High Court were justified in fixing the deduction."

7. In Bijoy Kumar Dugar Vs. Bidya Dhar Dutta & Ors. (2006) 3

SCC 242, where the deceased was 24 years old at the time of the

accident and was unmarried, the Supreme Court deducted one-third

from the earnings of the deceased, holding:-

"It is by now well-settled that the compensation should be the pecuniary loss to the dependants by the death of a person concerned. While calculating the compensation, annual dependency of the dependants should be determined in terms of the annual loss, according to them, due to the abrupt termination of life. To determine the quantum of compensation, the earnings of the deceased at the time of the accident and the amount, which the deceased was spending for the dependants, are the basic determinative factors. The resultant figure should then be multiplied by a `multiplier'. The multiplier is applied not for the entire span of life of a person, but it is applied taking into consideration the imponderables in life, immediate availability of the amount to the dependants, the expectancy of the period of dependency of the claimants and so many other factors. Contribution towards the expenses of the family, naturally is in proportion to one's earning capacity. In the present case, the earning of the deceased and consequently the amount which he was spending over the members of his family, i.e. dependency is to be worked out on the basis of the

earnings of the deceased at the time of the accident. The mere assertion of the claimants that the deceased would have earned more than Rs. 8,000/- to Rs. 10,000/- per month in the span of his lifetime cannot be accepted as legitimate income unless all the relevant facts are proved by leading cogent and reliable evidence before MACT. The claimants have to prove that the deceased was in a trade where he would have earned more from time to time or that he had special merits or qualifications or opportunities which would have led to an improvement in his income. There is no evidence produced on record by the claimants regarding future prospects of increase of income in the course of employment or business or profession, as the case may be. It is stated that the deceased was about 24 years at the time of the accident. The MACT has accepted Rs. 4,000/- per month, as the earning of the deceased and after deducting Rs. 400/- per month for his pocket expenses, the remaining sum of Rs. 3600/- has been divided into three equal shares, out of which two shares, i.e. Rs. 2400/- per month or Rs. 28,800/- (wrongly mentioned as Rs. 28,000/- in the award), were assessed as loss to both the claimants, who were the parents of the deceased. The ages of the claimants are stated to be between 45 and 50 years and accordingly multiplier of 12 was applied. Thus, a sum of Rs. 28,800/- X 12 = Rs. 3,45,600/- was awarded as compensation."

8. In Bilkish vs. United India Insurance Company Limited

(2008) 4 SCC 259, the Supreme Court held:-

"4. After hearing learned Counsel for the parties, we are of the option that the view taken by the High Court and Tribunal is not correct. The incumbent was a bachelor and he could not have spent more than one-third of his total income for personal use and rest of the amount earned by him would certainly go to the family kitty. Therefore, determining the loss of dependency by 50% was not correct. Therefore, we assess that he must be spending one-third towards personal use and contributing two-third of his income to his family....."

9. In Bangalore Metropolitan Transport Corporation Vs.

Sarojamma & Anr. (2008) 5 SCC 142, the Supreme Court held:-

"8. Whereas in determining an application for grant of compensation under Section 166 of the Act, the Tribunal may be entitled to find out actual loss of damages suffered by the claimants, the formula having not envisaged such a contingency, we are of the opinion that ordinarily one-third should be deducted from the income of the deceased and not the half thereof.

10. In the case of Deo Patodi & Anr. Vs. Devendra Arora & Anr.

AIR 2009 SC 2442, after reviewing several decisions rendered by it

on this aspect of the matter, the Supreme Court observed that the

question in regard to the loss of dependency would vary from case to

case. It further held that in the facts and circumstances of the said

case, deduction of one-third should be made.

11. In the present case, from the evidence on record it is evident

that the family of the deceased was dependent upon the earnings of the

deceased, who was working as a Chowkidar and was employed in the

Karkardooma Courts on a permanent basis, earning a sum of

Rs.12,816/- p.m. He left behind him, apart from his mother, three

minor siblings and an illiterate father, who has stated on oath that he

was not gainfully employed. These were special features of the case,

which should have been taken into account by the Claims Tribunal.

12. Keeping in view the aforesaid, it is deemed just and proper to

re-calculate the compensation payable to the appellant, taking his

income to be in the sum of Rs.19,224/- as assessed by the claims

Tribunal and deducting therefrom one-third of his income towards his

personal expenses. Thus calculated, the loss of dependency would be

Rs. 19,224 x 12 x 2/3 x 11, that is, Rs.16,91,712/- in all.

13. Adding to the aforesaid amount, a sum of Rs.25,000/- awarded

by the Tribunal towards non-pecuniary damages, including loss of

estate, loss of love and affection and funeral expenses of the deceased,

the compensation payable to the appellants works out to Rs.

17,16,712/-.

14. The award is enhanced to the aforesaid extent. The rest of the

award is upheld.

15. The Insurance Company is directed to deposit the enhanced

amount of compensation along with up-to-date interest thereon at the

rate of 7.5% per annum with the Registrar General of this court within

30 days from today. The enhanced amount along with the interest

thereon shall enure to the benefit of the appellants No.1 and 2, the

parents of the deceased.

16. The appeal stands disposed of in the above terms.

REVA KHETRAPAL (JUDGE) May 06, 2011 sk